COURT OF APPEALS

DECISION

DATED AND FILED

August 17, 2023

Samuel A. Christensen

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2022AP1044 Cir. Ct. No. 2021CV192

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT IV

NATIONAL COLLEGIATE STUDENT LOAN TRUST 2007-4,

 PLAINTIFF-APPELLANT,

 V.

HEATHER R. SELDAL,

 DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Dane County: 

FRANK D. REMINGTON, Judge. Reversed and cause remanded.

Before Kloppenburg, P.J., Graham, and Nashold, JJ.
No. 2022AP1044

2

¶1 GRAHAM, J. National Collegiate Student Loan Trust 2007-4 (“the 

Trust”) appeals a circuit court order certifying a class of Wisconsin residents1 with 

claims for declaratory relief under WIS. STAT. § 806.04 and claims based on 

violations of the Wisconsin Consumer Act, WIS. STAT. § 427.101 et seq. The 

Trust contends that the court’s order does not comport with WIS. STAT.

§ 803.08(11)(a), which requires a decision on class certification to set forth all 

reasoning and all evidence relied upon in support of the decision. The Trust also 

argues that it is entitled to an order denying class certification on the ground that 

the class representative, Heather Seldal, has not proven the statutory prerequisites 

for class certification.

¶2 We conclude that the circuit court’s class certification order does not 

comport with WIS. STAT. § 803.08(11)(a) because the court did not provide 

reasoning and analysis or point to evidence in the record to support its findings 

regarding at least some of § 803.08’s prerequisites for certification. However, we 

reject the Trust’s argument that it is entitled to an order denying class certification

as a matter of law. As a result, we reverse the class certification order and remand 

to the circuit court for further proceedings consistent with this opinion.

BACKGROUND

¶3 This class action lawsuit arose as a response to an action that the 

Trust commenced against Seldal to collect on a student loan that she took out from

 

1

 WISCONSIN STAT. § 803.08 (2021-22) specifically addresses procedural requirements 

for class actions filed in Wisconsin, and § 803.08(11)(b) provides that the court of appeals “shall 

hear an appeal of an order granting or denying class action certification” provided that “a notice 

of appeal is filed within 14 days after entry of the order.”

All references to the Wisconsin Statutes are to the 2021-22 version.
No. 2022AP1044

3

PNC Bank. The focus of Seldal’s class action is her allegation that the Trust has 

been unlawfully attempting to collect payments from a class of borrowers whose 

loans originated with multiple national banks including PNC.

¶4 The following facts pertain to Seldal’s loan, and are undisputed 

unless otherwise noted. In 2007, Seldal applied for an educational loan from PNC 

via a form credit agreement. PNC disbursed a $5,500 check, which Seldal

endorsed and deposited.

¶5 The parties dispute what happened to the ownership and right to 

collect on Seldal’s loan. The Trust alleges that shortly after disbursement, Seldal’s 

loan, along with the educational loans of hundreds of other borrowers, were “sold, 

assigned, and transferred” to the Trust through a “two-step” student loan 

securitization transaction allegedly arranged by First Marblehead Corporation. 

Seldal disputes that the loans were assigned to the Trust, and she further alleges 

that, even if they were, the Trust cannot prove that fact with admissible evidence.

¶6 According to the Trust, Seldal’s loan was serviced by American 

Education Services (“AES”).

2

It is undisputed that in 2009, Seldal filed for 

bankruptcy and identified “AES/nct” as the creditor of her student loan. She later 

requested and received forbearances on the loan from AES. Then, between 2012 

and 2016, Seldal submitted loan payments to AES.

¶7 The last payment that Seldal made on the loan was on October 31, 

2016. After Seldal ceased making payments, servicing was purportedly 

 

2

 AES is sometimes referred to as PHEAA, but we do not use that acronym in this 

opinion.
No. 2022AP1044

4

transferred from AES to Transworld Systems, Inc. (“TSI”), which is the default 

loan servicer for the Trust. According to the Trust, TSI then became the custodian 

of the records for Seldal’s loan and had “real-time access to AES’[s] system of 

record.”

¶8 After TSI exhausted its efforts to collect on the loan, the Trust

commenced this action against Seldal. In her answer, Seldal alleged that the Trust

could not prove that it had been assigned her loan because it lacked evidence of 

the chain of title, or because any evidence it had to prove the assignment was 

inadmissible.

¶9 Seldal then counterclaimed against the Trust on behalf of a putative 

consumer class.

3

 She alleged that the Trust had violated WIS. STAT. § 427.101 et 

seq. by attempting to collect, or actually collecting, on loans taken out by Seldal 

and the other putative class members, knowing that it did not have the legal right

to do so. Seldal also sought a declaration under WIS. STAT. § 806.04 that the Trust

“lacks the right to enforce or to collect the debts they allege they own from Seldal 

and the Consumer Class and Subclasses.”4

¶10 The Trust moved for summary judgment on its claims against Seldal, 

asserting that there was no genuine dispute of material fact that it had been 

assigned her loan. Some of the arguments and evidence presented in the summary 

judgment briefing are pertinent to the parties’ arguments about class certification; 

 

3

 Because this lawsuit originated with the Trust’s collection action, the circuit court 

filings designate Seldal as a “counter-plaintiff” and the Trust as a “counter-defendant.”

4

 Seldal also included a counterclaim under WIS. STAT. § 100.18 (the Wisconsin 

Deceptive Trade Practices Act), which the circuit court dismissed on summary judgment. Seldal 

has not sought leave to appeal the dismissal of this claim, and we discuss it no further.
No. 2022AP1044

5

therefore, although we are not reviewing the circuit court’s summary judgment 

decisions in this appeal, we summarize aspects of those proceedings that may be

relevant to the class certification decision.

¶11 The Trust asserts that it is one of several statutory trusts that were 

formed between 2004 and 2007 for the purpose of offering securities that are

backed by student loan assets.

5

 It further contends that it acquired multiple pools 

of private student loans, including a pool containing Seldal’s loan, in a single 

transaction that took place on September 20, 2007. According to the Trust, that 

transaction, which it describes as a “two-step sale,” proceeded as follows.

¶12 In the first step of the transaction, First Marblehead Corporation

arranged for more than a dozen national banks including PNC to assign pools of 

private student loans to an intermediate depositor called National Collegiate 

Funding (“Funding”). All of these loans had been originated and guaranteed by 

The Educational Resource Institute (“TERI”), and they were assigned to Funding 

through eighteen separate contracts referred to as “pool supplement” agreements.

¶13 The individual loans that the banks purportedly assigned to Funding 

were not specifically identified in the text of the pool supplement agreements. 

Instead, each pool supplement agreement referred to a pool of loans that was being 

assigned, and the individual loans in each pool were identified in documents

designated as “schedules” to each pool supplement agreement. According to the

 

5

 At the time Seldal moved to certify a class of consumers, she also moved to certify a 

class of defendants consisting of the Trust and all of the other national collegiate student loan 

trusts that were formed between 2004 and 2007 for the purpose of offering asset-backed securities 

comprised of educational loans. The circuit court denied the motion to certify a class of 

defendants, and Seldal has not appealed that decision.
No. 2022AP1044

6

Trust, PNC assigned Seldal’s loan to Funding via an agreement we refer to as the 

“PNC Pool Supplement Agreement,” and Seldal’s loan is specifically identified on 

“Schedule 1” of the PNC Pool Supplement Agreement.

¶14 In the second step of the transaction, Funding assigned the eighteen

different pools of loans to the Trust pursuant to a “Deposit and Sale Agreement.” 

Attached to that agreement were schedules identifying the pools of loans that 

Funding sold to the Trust. According to the Trust, Schedule A to the Deposit and 

Sale Agreement identifies the pool of PNC loans that includes Seldal’s loan.6

¶15 The Trust’s summary judgment materials made the following 

representations about the origination and servicing of Seldal’s loan. TERI had 

processed Seldal’s loan at its origination on PNC’s behalf, and it also processed all 

of the other loans that the Trust obtained in the two-step sale described above. 

Following disbursement, TERI sent the origination records for Seldal’s loan to the 

Trust’s loan servicer, AES. AES had been appointed a custodian of Seldal’s loan 

documents, and it serviced her loan until it was charged off in June 2017. 

Following Seldal’s default, the servicing of the account was transferred to TSI, 

which is the post-default servicer for the Trust. Pursuant to a default servicing 

agreement, TSI became the record custodian for the Trust with respect to the 

accounts TSI services, including Seldal’s, and it may refer loans to law firms for 

collection actions on behalf of the Trust.

 

6

 Seldal disputed this allegation during the summary judgment proceedings. She asserted 

that the type of loan she had taken out from PNC is not described in the PNC Pool Supplement 

Agreement or Schedule A to the Deposit and Sale Agreement.
No. 2022AP1044

7

¶16 To support its summary judgment motion, the Trust submitted the 

affidavit of Bradley Luke, who averred that he was “the Director of Operations 

and a records custodian at [TSI].” Luke averred that Seldal’s loan and the other 

loans that were part of the PNC pool were assigned from PNC to Funding through 

the PNC Pool Supplement Agreement. Luke further averred that Funding

assigned all rights, titles, and interests in Seldal’s loan to the Trust through the

Deposit and Sale Agreement. Luke attached a purported copy of the PNC Pool 

Supplement Agreement to his affidavit. He also attached a purported “excerpt” of 

Schedule 1 of the PNC Pool Supplement Agreement, which allegedly showed that 

Seldal’s loan was identified in Schedule 1. Finally, he attached a purported copy 

of the Deposit and Sale Agreement and a copy of its Schedule A, which, as noted 

above, purportedly identified the pool of PNC loans that allegedly included 

Seldal’s loan.

¶17 Seldal opposed the Trust’s motion. She argued that Luke’s affidavit 

and attached exhibits were not admissible as evidence.

7

In the alternative, Seldal

 

7

 Seldal advanced a number of arguments regarding the admissibility of Luke’s affidavit 

and its attached exhibits. We do not resolve these issues in this appeal, and note them here only 

because they are related to the parties’ arguments regarding class certification.

First, Seldal asserted that Luke lacked personal knowledge of his averments, as required 

by WIS. STAT. § 802.08(3). Seldal argued that Luke could not have had personal knowledge of 

the PNC Pool Supplement Agreement, its Schedule 1, or the Deposit and Sale Agreement because 

he first began working for TSI’s predecessor in 2010, after the transaction occurred. Therefore, 

she argued, the copy of the PNC Pool Supplement Agreement, the “excerpt” of Schedule 1, and 

the copy of the Deposit and Sale Agreement were all inadmissible hearsay. Second, she argued 

that the exhibits to Luke’s affidavit were not admissible under the hearsay exception for records 

of a regularly conducted activity, see WIS. STAT. § 908.03(6), because they were created and 

maintained by entities other than TSI and Luke lacked personal knowledge of how the records 

were made, whether they were made at or near the time of the event recorded by a person with 

personal knowledge, and whether the records were prepared in the course of those other entities’ 

regularly conducted activities. Third, she challenged the authenticity of several of the exhibits. 

Finally, Seldal asserted that the Trust could not rely on Luke’s testimony to show the contents of 

(continued)
No. 2022AP1044

8

argued that the Trust’s evidence, even if admissible, failed to prove that her loan

was assigned to the Trust.

8

¶18 The circuit court held a hearing on the Trust’s motion for summary 

judgment on its claims against Seldal. During the hearing, the court struck at least 

some portions of Luke’s affidavit, including the exhibits that were attached to the

affidavit. According to the court, at least some aspects of Luke’s affidavit 

constituted inadmissible hearsay that failed to satisfy the hearsay exception for 

records of a regularly conducted activity under WIS. STAT. § 908.03(5). Having 

determined that the Trust failed to satisfy its burden of proof, the court denied its

motion for summary judgment on its claims against Seldal.

9

 

Schedule 1 to the PNC Pool Supplement Agreement under WIS. STAT. § 910.02, which, with 

certain exceptions, requires an “original” to prove the content of a writing.

8

 Again, we do not resolve these issues here and note them only because they are 

pertinent to the arguments about class certification. Seldal argued that the fact that the Trust

possessed her credit agreement with PNC did not prove that her loan had been assigned to the 

Trust. She argued that, in order to prove its status as an assignee, the Trust had to present 

evidence showing that it had been assigned her specific loan, and that it was not enough to 

present agreements such as the PNC Pool Supplement Agreement or the Deposit and Sale

Agreement that showed it had been assigned pools of unidentified loans. Finally, Seldal argued

that the Trust had not and could not produce an authenticated and admissible copy of Schedule 1. 

She disputed the authenticity of the “excerpt” of Schedule 1 that was attached to Luke’s affidavit 

and purportedly showed that her loan was assigned as a part of the PNC Pool Supplement

Agreement, and she argued that, without Schedule 1, the Trust could not prove that it had been 

assigned the right to collect on her loan.

9 Although we are not reviewing the circuit court’s summary judgment decisions, we 

make the following observations because they may be helpful to the proceedings following 

remand.

We observe that during the circuit court proceedings the discussion of the hearsay rules 

by the court and parties may not fully account for a distinction that the case law appears to 

recognize between assignment documents, which can take the form of contracts between assignor 

and assignee, and loan servicing records, which are often used to document activities including 

communications and payments and may be admissible as records of regularly conducted 

activities. See Dow Fam., LLC v. PHH Mortg. Corp., 2013 WI App 114, ¶19, 350 Wis. 2d 411, 

838 N.W.2d 119 (concluding that a copy of a note was not hearsay because it was not being 

(continued)
No. 2022AP1044

9

¶19 Following this decision, the Trust moved for summary judgment on 

Seldal’s counterclaims. It argued that Seldal’s counterclaims fail as a matter of 

law because they hinge on an allegation that the Trust knew or should have known

that it would be unable to prove that it had the right to collect on Seldal’s loan. 

According to the Trust, the evidence it submitted regarding the purported 

assignment of Seldal’s loan “clearly demonstrate[d]” that, at the very least, at the 

time the Trust attempted to collect on Seldal’s loan, it believed that it had been

assigned the loan and would be able to prove that status.

¶20 As an initial matter, the Trust argued that, for purposes of defending 

against Seldal’s counterclaims, the evidence it submitted was not hearsay because 

it was being presented to show that the Trust had reason to believe that it owned 

Seldal’s loan, and not for the truth of the matters asserted. The Trust also 

submitted a revised affidavit from Luke with the PNC Pool Supplement 

Agreement, a purported copy of Schedule 1, and the Deposit and Sale Agreement

attached as exhibits. Luke averred that TSI’s predecessor had received the PNC 

Pool Supplement Agreement’s Schedule 1 in a digital Excel file format on 

November 14, 2012, that the Excel file had been stored on servers controlled by 

TSI’s predecessor and then TSI, and that the Excel file had not been modified at 

any time since its receipt. According to Luke, Exhibit D to his affidavit was a 

 

offered to prove the truth of the matters asserted but instead as evidence of a legal act); Bank of 

America NA v. Neis, 2013 WI App 89, ¶49, 349 Wis. 2d 461, 835 N.W.2d 527 (holding that 

“contracts, including promissory notes, are not hearsay when they are offered only for their legal 

effect, not ‘to prove the truth of the matter asserted’” (citation omitted)); cf. Central Prairie 

Financial LLC v. Yang, 2013 WI App 82, ¶13, 348 Wis. 2d 583, 833 N.W.2d 866 (considering 

whether documents including a bill of sale that substantiated the assignment of an account were 

admissible under the hearsay exception for records of regularly conducted activities).

We also observe that some of the parties’ arguments may conflate issues of authenticity 

and the foundational requirements for the hearsay exception in WIS. STAT. § 908.03(6).
No. 2022AP1044

10

copy of the Excel file that constituted Schedule 1, which had been converted into a 

PDF format and redacted.

¶21 The Trust also argued that it had presented additional proof in the 

form of affidavits from employees of other entities involved in the alleged 

assignment of Seldal’s loan to the Trust. It argued that these affidavits 

authenticate the PNC Pool Supplement Agreement, its Schedule 1, the Deposit and 

Sale Agreement, and its Schedule A, and that the affidavits also confirm that

Seldal’s loan was included in the chain of assignments from PNC to the Trust.

10

¶22 Seldal opposed the Trust’s motion for summary judgment on her 

counterclaims, and she also filed a motion for summary judgment on the Trust’s 

claims against her.11 In her briefing, Seldal argued that the Trust had yet to 

provide an authenticated or admissible copy of Schedule 1, and she reasserted her 

argument that the Trust could not authenticate Schedule 1 or establish that it was 

admissible based on an exception to the hearsay rule.

 

10

 The Trust provided the affidavit of Cindy Dehls and Dori Costello. Dehls averred that 

she was the vice president for PNC Student Lending who signed the PNC Pool Supplement 

Agreement on PNC’s behalf. Schedule 1 was not attached to Dehls’ affidavit, but she averred 

that she had reviewed the PNC Pool Supplement Agreement and Schedule 1 and confirmed that 

Seldal’s loan was included in the transaction between PNC and Funding. Costello averred that 

she was an employee of Wilmington Trust Company, who was an “owner trustee” for the Trust, 

which executed the Deposit and Sale Agreement on the Trust’s behalf. Among other things, 

Costello averred that Schedule A to the Deposit and Sale Agreement identifies the pool of PNC 

loans listed on the electronic Schedule 1 to the PNC Pool Supplement Agreement.

11

 With respect to her motion for summary judgment on the Trust’s claims, Seldal also 

filed a copy of a deposit and sale agreement between Funding and a different trust, the National 

Collegiate Student Loan Trust 2007-3. Seldal claimed that this agreement showed that the 

National Collegiate Student Loan Trust 2007-3 had purportedly been assigned the same PNC 

pool of loans as the Trust that allegedly included Seldal’s loans and was assigned to the Trust.
No. 2022AP1044

11

¶23 The circuit court held a hearing on the parties’ motions. Following 

the hearing, the court denied the Trust’s motion as to Seldal’s counterclaims for 

declaratory relief and under the Wisconsin Consumer Act, and it also denied

Seldal’s motion for summary judgment on the Trust’s claims against her. Neither 

the transcript of the hearing nor any other document memorializing the court’s 

rationale is included in the record on appeal.

¶24 Around the same time, Seldal also filed the motion to certify a class 

and subclass of consumers that is the subject of this appeal. The motion explained 

that, if certified, the class and subclass would seek a declaration that the Trust

“lacks the right to enforce or to collect the debts they allege they own from Seldal” 

and other class members and monetary penalties and damages for, among other 

things, violations of the Wisconsin Consumer Act, WIS. STAT. § 427.101 et seq.

The class would comprise “[a]ny Wisconsin resident whom [the Trust] directly, or 

indirectly through their authorized agent(s) communicated with alleging that a 

debt was owed.” The subclass would consist of “[a]ny member of the [general 

class] who paid [the Trust], directly or indirectly, any amounts in response to any 

communication that alleged they owed a debt.”

¶25 In her certification motion, Seldal asserted that her claims for 

declaratory and monetary relief were the same as those of the putative class 

members, and that they all hinge on one common predominant question—whether 

the Trust could produce admissible evidence proving that it had been assigned the 

class members’ loans. She further argued that the Trust could not produce such 

evidence for a reason that was common to all class members. According to Seldal, 

the Trust does not have employees of its own, and instead relies on servicers to 

collect on loans and maintain custody of its records. Seldal alleged that neither 

AES nor TSI could produce a copy of the schedules that had purportedly been 
No. 2022AP1044

12

attached to the PNC Pool Supplement Agreement or the other pool supplement 

agreements that were purportedly assigned to the Trust through the Deposit and 

Sale Agreement.

¶26 The Trust opposed Seldal’s motion. Among other things, it asserted 

that Seldal’s counterclaims were inappropriate for class-wide resolution because

several key determinations would require individualized inquiries in “every 

instance,” including whether the Trust does not own the loans taken out by each 

consumer; whether the Trust knew or should have known as much; whether the 

consumer was injured as a result of the Trust’s conduct; and the amount of 

damages that should be awarded. The Trust claimed that, for each member of the 

putative class, a jury would need to consider the loan’s chain of title documents;

testimony from third parties; and the conduct of each consumer, including whether 

the consumer made payments, whether the consumer disputed the debt, and 

whether the Trust’s ownership of the loan at issue had already been adjudicated.

¶27 Following a hearing, the circuit court granted Seldal’s certification 

motion. See WIS. STAT. § 803.08(3), (11) (requiring a written class certification 

order). In its written order, the court certified a class consisting of “any Wisconsin 

resident, defined by residence at an address in Wisconsin, who [the Trust] claimed

owed money on an assigned loan as of January 27, 2021, the date of the 

commencement of this action.” The court also certified a subclass consisting of

“any person who meets the above three factors” and “who paid money to [the 

Trust] in response to any communication that alleged they owed a debt.” The 

court identified the class claims and issues as follows: “whether the class is 

entitled to monetary damages under WIS. STAT. § 427.101, et seq. and/or

declaratory relief under WIS. STAT. § 806.04.” The court appointed Seldal as the 

class representative and Seldal’s counsel as class counsel.
No. 2022AP1044

13

¶28 In certifying the class, the circuit court declined to address the 

history of the loan assignments discussed above, stating that “[t]he parties’ 

financial histories will not be material to this decision.” It concluded that Seldal 

had established the elements required by WIS. STAT. § 803.08(1) and (2)(c), which 

include commonality and predominance. Regarding commonality, the court 

determined that there was one question that was common to the class—whether 

the Trust “unlawfully attempt[ed] to collect on [the class members’] loans”—and 

that that common question could be answered “‘in one stroke’ by a factual inquiry 

into [the Trust]’s beliefs and intentions regarding the assignment of the class 

members’ loans.” Regarding predominance, the court determined that the

common issues regarding the assignment of these loans would predominate, even 

if, as the Trust predicts, “other documents may be necessary” to prove the class 

members’ claims.

¶29 The Trust appeals the class certification order. We provide 

additional details regarding that order as necessary below.

DISCUSSION

¶30 The Wisconsin requirements for class certification are codified in 

WIS. STAT. § 803.08. That statute has recently been revised, both by our supreme 

court and also by the state legislature, to harmonize Wisconsin law with federal 

class certification standards. See S. CT. ORDER 17-03 (eff. July 1, 2018); 2017 

Wis. Act 235. The Wisconsin Supreme Court has directed us to look to federal

case law applying Rule 23 of the Federal Rules of Civil Procedure when 

interpreting our state statute. See Harwood v. Wheaton Franciscan Servs., Inc., 

2019 WI App 53, ¶21, 388 Wis. 2d 546, 933 N.W.2d 654 (citing Judicial Council 

Committee Notes, 2017, § 803.08, and stating that the “intent was to craft a 
No. 2022AP1044

14

Wisconsin class action rule that tracks as closely as possible federal practice so 

that Wisconsin courts and practitioners can look to the well-developed body of 

federal case law interpreting [Rule] 23 for guidance”).

¶31 The substantive standards for certifying a class are found in WIS.

STAT. § 803.08(1) and (2). Subsection (1) requires the party requesting

certification to establish, by a preponderance of the evidence, three facts about the 

proposed class and class representative (referred to as “numerosity,”

“commonality,” and “typicality”) and a fourth fact about the party’s ability to 

represent the class (referred to as “adequacy”).12 See Harwood, 388 Wis. 2d 546, 

¶23 (citing § 803.08(1)); Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349

(2011) (commonly referred to as Dukes); see also Fotusky v. ProHealth Care, 

Inc., 2023 WI App 19, ¶11, 407 Wis. 2d 554, 991 N.W.2d 502 (explaining burden 

of proof is a preponderance of the evidence).

¶32 If the party requesting certification satisfies its burden on these four 

prerequisites, that party must also prove that the putative class action conforms to 

one of the class actions enumerated in WIS. STAT. § 803.08(2). As relevant here, 

the party must prove “that the questions of law or fact common to all class 

members predominate over any questions affecting only individual members, and 

that a class action is superior to other available methods for fairly and efficiently 

 

12

 Specifically, WIS. STAT. § 803.08(1) requires that: (a) “[t]he class is so numerous that 

joinder of all members is impracticable”; (b) “[t]here are questions of law or fact common to the 

class”; (c) “[t]he claims or defenses of the representative parties are typical of the claims or 

defenses of the class”; and (d) “[t]he representative parties will fairly and adequately protect the 

interests of the class.”
No. 2022AP1044

15

adjudicating the controversy.” See § 803.08(2)(c).13 These two additional 

prerequisites are referred to as “predominancy” and “superiority.” Harwood, 388 

Wis. 2d 546, ¶24.

¶33 The decision to grant or deny a motion for class certification is 

committed to the circuit court’s discretion. Id., ¶¶5, 41; Hammetter v. Verisma 

Sys., Inc., 2021 WI App 53, ¶9, 399 Wis. 2d 211, 963 N.W.2d 874. A court 

properly “exercises its discretion when it considers the facts of record and reasons 

its way to a rational, legally sound conclusion.” Shannon v. Mayo Clinic Health 

Sys. – Nw. Wisconsin Region, Inc., 2021 WI App 49, ¶12, 398 Wis. 2d 685, 963 

N.W.2d 115 (citing Harwood, 388 Wis. 2d 546, ¶41).

¶34 In some instances, if a circuit court fails to set forth its reasoning to 

support a discretionary decision, an appellate court will independently review the 

record and search for reasons to sustain the court’s exercise of discretion. See, 

e.g., State v. Pharr, 115 Wis. 2d 334, 343, 340 N.W.2d 498 (1983). Here, 

however, the circuit court’s certification decision is governed by the standard set 

forth in WIS. STAT. § 803.08(11)(a), which requires “a written decision setting 

forth all reasons why the [class] action may be maintained and describing all 

evidence in support of its determination.”14 Whether the court’s certification 

 

13

 “The matters pertinent to these findings include: 1. The class members’ interests in 

individually controlling the prosecution or defense of separate actions[;] 2. The extent and nature 

of any litigation concerning the controversy already begun by or against class members[;] 3. The 

desirability of concentrating the litigation of the claims in the particular forum[;]” and “4. The 

likely difficulties in managing a class action.” WIS. STAT. § 803.08(2)(c).

14

 The standard in WIS. STAT. § 803.08(11)(a) was added to the statute by the legislature 

in 2017 Wis. Act 235, which became effective in April 2018. Although the Harwood court 

acknowledged these legislative revisions to the statute, it determined that the revisions had no 

bearing on its analysis of the issues in that case. Harwood v. Wheaton Franciscan Servs., Inc., 

2019 WI App 53, ¶4 n.4, 388 Wis. 2d 546, 933 N.W.2d 654.
No. 2022AP1044

16

decision satisfies that standard is a question of law we review de novo. Shannon, 

398 Wis. 2d 685, ¶13. Because our review of a decision certifying a class action is 

governed by this legislative directive, we will not search the record for reasons to 

affirm the decision if we conclude that it does not comport with § 803.08(11)(a). 

See id.; see also Cowan v. Cave Enters. Operations, LLC, No. 2021P1441, 

unpublished slip. op. ¶¶15-18 (WI App Jan. 24, 2023) (remanding to the circuit 

court because the court’s order failed to set forth all reasoning and all evidence in 

support of its certification ruling, despite a substantial evidentiary record).15

¶35 The Trust makes two overarching requests in this appeal. First, it 

asks us to reverse the certification order on the ground that the circuit court did not

fully set forth its reasoning or the evidence it relied upon, and therefore the court’s 

order does not comport with WIS. STAT. § 803.08(11)(a). Second, the Trust asks 

us to conclude that Seldal is not entitled to certification as a matter of law on the 

ground that her motion fails to satisfy the prerequisites for certification found in

§ 803.08(1) and (2).

¶36 As to the first request, Seldal does not meaningfully dispute that the

circuit court’s order lacks reasoning and evidence, but she contends that the issues 

are simple, the court “fully understood the claims before it” based on its prior 

review of the cross-motions for summary judgment, and the record evidence

satisfies all prerequisites for class certification found in WIS. STAT. § 803.08. 

Therefore, Seldal asks us to affirm the court’s exercise of discretion despite any 

deficiency in its written order.

 

15

 We cite this authored unpublished opinion pursuant to WIS. STAT. RULE 809.23(3) for 

its persuasive value.
No. 2022AP1044

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¶37 For reasons we explain below, we conclude that the circuit court’s 

written decision does not comport with WIS. STAT. § 803.08(11)(a). In our review 

of the decision, we are unable to discern the court’s “rigorous analysis” in its

consideration of at least some of § 803.08(1)’s prerequisites, and ultimately its 

reasons for certifying the class and subclass. See § 803.08(11)(a); General Tel. 

Co of Sw. v. Falcon, 457 U.S. 147, 161 (1982) (requiring a rigorous analysis to 

support a class certification decision). The gaps in the court’s analysis are most 

pronounced in its discussion of commonality, § 803.08(1)(b), and predominance, 

§ 803.08(2)(c), and these gaps may affect the court’s analysis of other 

prerequisites as well.

¶38 As noted, WIS. STAT. § 803.08(1)(b) requires “questions of law or

fact common to the class” as one prerequisite for certifying a class action. 

However, as the United States Supreme Court observed in Dukes, “[t]hat language 

is easy to misread, since ‘any competently crafted class complaint literally raises 

common questions.’” Dukes, 564 U.S. at 349 (citation omitted). Thus, the raising 

of common questions alone does not suffice, see id., nor does the mere fact that all 

of the class members have experienced a violation of the same provision of law,

see id. at 350. The focus of the commonality inquiry turns on whether, as a result 

of the common questions, there is “cause to believe that all class members’ claims 

can be productively litigated at once.” Harwood, 388 Wis. 2d 546, ¶25.

¶39 For the class’s claims to be productively litigated at once, they “must 

depend upon a common contention that is capable of class-wide resolution.” See 

Dukes, 564 U.S. at 350; Bell v. PNC Bank, Nat. Ass’n, 800 F.3d 360, 374 (7th

Cir. 2015). A common contention is capable of class-wide resolution if it can be 

proven or disproven with common evidence, and a determination of its truth or 
No. 2022AP1044

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falsity will resolve an issue that is central to the validity of each class member’s

claims. See Harwood, 388 Wis. 2d 546, ¶25 (citing Dukes, 564 U.S. at 350).

¶40 Turning to the certification decision in this case, as noted, the circuit 

court certified two claims for class-wide resolution: (1) a claim seeking a 

declaration that the Trust lacks the right to enforce or to collect the debts of each 

class member; and (2) a claim that the Trust violated the Wisconsin Consumer Act

by, among other things, attempting to collect a debt from the class members that it

knew or ought to have known it could not prove it owned. See WIS. STAT.

§ 427.104(1)(j) (providing that, when attempting to collect an alleged debt arising 

from a consumer credit transaction, a merchant may not “[c]laim, or attempt or 

threaten to enforce a right with knowledge or reason to know that the right does 

not exist”).

¶41 In finding commonality, the circuit court identified one question that 

was common to the class claims—whether the Trust “unlawfully attempt[ed] to 

collect on [the class members’] loans.” According to the court, “this common 

question may be answered ‘in one stroke’ by a factual inquiry into [the Trust]’s

beliefs and intent regarding the class members’ loans.” The court summarily 

rejected the Trust’s arguments that the class members’ claims would require an 

individualized inquiry into each loan’s specific chain of assignment, stating that it 

was “not persuaded that these differences between class members defeat 

commonality,” and that “[i]t does not matter that other questions specific to 

individual class members will remain unanswered[.]”

¶42 We conclude that the circuit court’s discussion of commonality does 

not comport with WIS. STAT. § 803.08(11)(a). The common question identified by 

the circuit court—whether the Trust unlawfully attempted to collect on the class 
No. 2022AP1044

19

members’ loans—is nothing more than a highly generalized description of a claim 

under the Wisconsin Consumer Act. See WIS. STAT. § 427.104(1)(j) (forbidding a 

merchant from enforcing or attempting to enforce a right that it knows or has 

reason to know does not exist). Yet, as discussed above, the mere fact that the 

class members all raise the same legal claims and must prove the same elements to 

prevail is not sufficient to establish commonality. See Dukes, 564 U.S. at 350;

Bell, 800 F.3d at 374. Instead, the class’s claims must depend upon a common 

contention or theory, which must be provable with common evidence and which, 

if proven, must resolve an issue central to the claims of all class members. See

Bell, 800 F.3d at 374; Harwood, 388 Wis. 2d 546, ¶25 (citing Dukes, 564 U.S. at 

350).

¶43 Here, the circuit court did not explain its reasons for concluding that 

the common question it identified could be answered “‘in one stroke’ by a factual 

inquiry into [the Trust]’s beliefs and intent.” And, absent additional explanation, 

we have reason to question whether that common question could be answered in 

one stroke, at least at the level of generality that the question was posed by the 

court. Based on our review of the allegations and evidence in the record, it 

appears that Seldal is alleging that the Trust’s collection efforts were unlawful for 

a number of reasons related to the alleged lack of assignments, or the lack of proof 

thereof. Some of these reasons might be capable of class-wide resolution, and 

others may not. The circuit court’s discussion of commonality lacks the reasoning

and analysis required by WIS. STAT. § 803.08(11)(a), and the certification order

must be reversed on that basis.

¶44 So too regarding the related inquiry into whether the common 

questions “predominate over any questions affecting only individual members.” 

See WIS. STAT. § 803.08(2)(c). The circuit court’s discussion of predominance is 
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also overly generalized and inadequate, likely because the court did not zero in on

specific common questions or contentions that are capable of class-wide 

resolution.

¶45 Wisconsin courts have observed that “[t]he guiding principle behind 

predominance is whether the putative class’s claims arise from a common nucleus 

of operative facts and issues.” Hammetter, 399 Wis. 2d 211, ¶23 (citation 

omitted). Here, the circuit court’s ruling did not describe any common nucleus of 

operative facts and issues from which it found Seldal’s claims and the class’s 

claims to arise. Nor did the court explain why it believed the issues common to 

the class would predominate over individualized questions, or what evidence it 

relied upon to find as much. Therefore, the court’s discussion of predominance 

also lacks the reasoning and analysis required by WIS. STAT. § 803.08(11)(a), and 

this is an additional reason that the certification order must be reversed.16

¶46 With its second request on appeal, the Trust asks us to go one step 

further. It argues that Seldal has not proven commonality and predominance for 

any putative class, and that we should direct the circuit court to enter an order 

denying class certification on that basis. The Trust contends that the putative 

class’s claims are inherently individualized because they are contractual in nature,

that individualized inquiries would predominate over common questions, and 

accordingly, that there is no reason to think that a class-wide proceeding would 

generate common answers about the loan assignments. Here, the class certified by 

the court encompasses members whose loans originated with more than a dozen 

 

16

 The parties raise a number of other arguments that we decline to address because our 

conclusion, that the circuit court’s rulings on commonality and predominance fail to satisfy WIS.

STAT. § 803.08(11)(a), is dispositive.
No. 2022AP1044

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banks, and were then pooled into eighteen different pool supplement agreements 

before they were assigned to the Trust through the Deposit and Sale Agreement. 

Therefore, the Trust argues, determining whether any specific class member’s loan

was assigned to it will require an individualized inquiry into the chain of 

assignment for that specific loan, and will not generate any answers for class 

members whose loans originated with a different bank and were pooled into 

different pool supplement agreements.

¶47 This argument by the Trust illustrates some of the nuances that 

should have been explored in the circuit court’s certification decision. Indeed, to 

the extent that the court determined that the historical details of the assignments

were not “material to [its] decision,” the court erred as a matter of law. However, 

as we now explain, we are not persuaded that the Trust is entitled to an order 

denying certification on the ground that Seldal cannot show commonality and 

predominance as prerequisites to certification.

¶48 To prevail on its claims, a putative class would have to prove that 

the Trust has no right to collect on the class members’ loans. And, to prevail on at 

least one of its claims under the Wisconsin Consumer Act, a putative class would 

also have to prove that, despite knowing or having reason to know that it did not 

have that right, the Trust attempted to collect on the class members’ loans. See

WIS. STAT. § 427.104(1)(j). The parties agree that the claims at issue here turn on 

whether the Trust lacks the right to collect on the class members’ loans.17

 

17

 The parties dispute their respective burdens of proof on the class’s claims. At times, 

Seldal appears to contend that it is the Trust’s burden to prove it is an assignee. By contrast, the 

Trust argues that it is the class’s burden to prove that the Trust is not the assignee, citing Gwiazda 

v. LVNV Funding, LLC, No. CV 22-00698, 2022 WL 4280478 (E.D. Pa. Sept. 15, 2022) 

(concluding that no reasonable jury could find for plaintiff on her Fair Debt Collection Act claims 

(continued)
No. 2022AP1044

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¶49 As noted above, the Trust may lack that right for any number of 

reasons. Some of these reasons may be unique to Seldal.

18 Other reasons may be 

common to some or all of the loans allegedly assigned in the PNC Pool 

Supplement Agreement, but not common to the entire class that the circuit court

certified, which includes seventeen other loan pools originated by different banks. 

Finally, some reasons identified by Seldal may be common to all of the individuals 

whose loans were allegedly included in any of the pools.

¶50 Seldal cannot demonstrate commonality unless she identifies a 

reason or reasons that are common to all members of a defined class as to why the 

Trust does not have the right to collect on their loans. See Dukes, 564 U.S. at 350. 

To that end, Seldal must allege and point to evidence supporting the existence of

some uniform flaw in the chain of assignment of all of the loans, or some uniform 

flaw in the Trust’s maintenance or retention of documents related to all of the class 

members’ loans. And this uniform flaw must be capable of proof by evidence that 

is common to the class, rather than through individualized attacks upon the Trust’s 

attempts to introduce evidence of the chain of assignment for each class member’s 

loan.

 

against purported assignee because the mere fact that the purported assignee could not prove its 

assignee status in a prior collection lawsuit, without more, did not mean that the purported 

assignee had not been assigned the loan). We need not and do not resolve this dispute in this 

appeal, and we note it here only because it will likely resurface during the proceedings on 

remand.

18

 For example, Seldal has alleged that her loan was not included in any pool of PNC 

loans assigned to the Trust because the type of loan that she took out is not described in the PNC 

Pool Supplement Agreement or Schedule A to the Deposit and Sale Agreement, and also that 

another deposit and sale agreement purports to assign the same pool of loans that allegedly 

includes her loan to a different trust.
No. 2022AP1044

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¶51 Based on the record before us, we cannot conclude as a matter of 

law that Seldal failed to satisfy this burden. Contrary to the Trust’s assertions, 

Seldal has arguably advanced at least some reasons that may be common to the 

members of a putative class as to why the Trust allegedly has no right to collect on 

the loans. These alleged reasons may be common to a putative class because they

are allegedly rooted in the structure of the agreements comprising the two-step 

sale as well as the terms of servicing agreements, and they may be provable 

without individualized inquiries into each loan’s specific chain of assignment. See 

WIS. STAT. § 803.08(1)(b). And the circuit court may conceivably be able to 

determine that such common questions would “predominate over any questions 

affecting only individual members.” See § 803.08(2)(c). The court did not engage 

with these allegations or the evidence at the time it issued the decision that is the 

subject of this appeal, but that does not mean that Seldal’s theories and evidence 

fail to support commonality and predominance as a matter of law.

19

CONCLUSION

¶52 For the reasons explained above, the circuit court’s failure to provide 

reasoning and analysis in its discussion of commonality and predominance, and its 

failure to point to evidence in support of its findings, requires that we reverse its 

certification order, and we remand for the court to conduct additional class 

certification proceedings. We provide the following guidance regarding those 

proceedings on remand. First, the court may consider whether in its judgment it is 

 

19

 On remand, the circuit court and parties may wish to consider WIS. STAT. § 803.08(6), 

which provides that, “when appropriate, an action may be brought or maintained as a class action 

with respect to particular issues.” This section appears to be based on Rule 23(c)(4) of the 

Federal Rules of Civil Procedure, which allows a court to certify an “issue class” in which only 

particular issues in the underlying controversy are to be resolved collectively.
No. 2022AP1044

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appropriate to decide Seldal’s motion based on the submissions that have already 

been filed, taking argument from the parties on this point as it deems appropriate, 

or whether it is appropriate to allow or require the parties to submit additional 

briefing and evidence. Second, we offer no opinion on how the issues surrounding 

commonality and predominance should be resolved on the merits following

remand, nor do we weigh in on the other prerequisites for class certification. On 

remand, the circuit court will be free to exercise its discretion on these issues as it 

sees fit, as long as any decision certifying a class complies with WIS. STAT.

§ 803.08(11)(a).

By the Court.—Order reversed and cause remanded.

Not recommended for publication in the official reports.